CYIL 2015

GAPS IN THE LEGAL REGIME OF INTERSTATE COOPERATION IN PROSECUTING CRIMES opinion that the definition of the crimes against humanity contained in the Rome Statute should remain untouched and be adopted (or referred to) verbatim in any possible future international instrument on international cooperation in prosecution of this crime, is also held by the authors of the joint intergovernmental initiative mentioned above and was adopted by the Commission’s Special Rapporteur in his First report, as well as by the drafters of the Proposed International Convention for the Prevention and Punishment of Crimes against Humanity (described in the following chapter) 45 and by states in the discussions on the work of the International Law Commission. Thus, it seems to be a settled issue that any future convention on cooperation with regard to crimes against humanity will refer to or take over the exact definition of the crimes against humanity in Article 7 of the Rome Statute (and, when appropriate, the definitions of other relevant crimes under the Rome Statute). This does not mean that the relationship between the definition in the Rome Statute and the customary international law is definitively settled: on the one hand, the decisions of the International Criminal Court concerning the scope of Article 7 are likely to have a significant impact on the development of customary international law in this area; on the other hand, customary international law, to the extent it might differ from the legal regime of the Rome Statute, will remain relevant and should be taken into account when interpreting Article 7 of the Rome Statute (of course within the limits of the text of Article 7 of the Rome Statute and relevant provisions of the Elements of Crimes). The interpretation of some aspects of the definition in Article 7 (such as the question whether the “organizational policy” element encompasses any organization capable of committing a widespread or systematic attack on a civilian population, or whether only “state-like” organizations may commit such a crime) 46 is not a settled issue, and the interaction with the customary international law may stabilize these controversial aspects of the definition of crimes against humanity under the Rome Statute. 47 45 This conclusion was also “virtually unanimously” supported by the participants of the experts‘ meeting in Geneva in May 2014 organized by the Crimes Against Humanity Initiative on the topic of the Proposed International Convention; see Washington University in St. Louis School of Law, Crimes Against Humanity Initiative, Fulfilling the Dictates of Public Conscience: Moving Forward with a Convention on Crimes Against Humanity, May 16-17, 2014, Villa Moynier, Geneva, Switzerland, Report of July 17, 2014, p. 10; see http://law.wustl.edu/harris/documents/Final-CAHGenevaReport-071714.pdf (visited on 17 June 2015). 46 For the description of this controversy see Leila N. Sadat, op. cit. sub 44, p. 368 et seq. ; Gerhard Werle, Boris Burkhardt, Do Crimes Against Humanity Require the Participation of a State or a ‚State-like‘ Organization?, Journal of International Criminal Justice, Volume 10, 2012, Issue 5, p. 1151 et seq. ; see also R. Cryer, H. Friman, D. Robinson, E. Wilmshurst, An Introduction to International Criminal Law and Procedure, 2nd edition, Cambridge University Press, 2010, pp. 239-240 (who point to the fact that it is not settled whether the State or an organizational policy element formed a necessary component of crimes against humanity before the adoption of the Rome Statute). 47 Furthermore, as noted in the doctrine, the list of specific acts in Article 7, paragraph 1 (a) to (j) of the Rome Statute “may not be complete and it is possible that other acts will be recognized as crimes against

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